United States District Court, E.D. Louisiana
December 09, 2004
Robert Stephen Rooth, Corinne Ann Morrison, H. Michael Bush, Chaffe, McCall, Phillips, Toler & Sarpy, LLP, New Orleans, LA, Saul Perloff, Joseph Bourbois, Fulbright & Jaworski LLP, San Antonio, TX, for Plaintiff.
George Davidson Fagan, Peirce A. Hammond, II, Angelina Christina, Leake & Andersson, LLP, John M. Landis, Stephen G. Bullock, Jason Matthew Bilbe, Stone Pigman Walther Wittmann, LLC, New Orleans, LA, L. A. Perkins, Robert E. Pershes, Buckingham, Doolittle & Burroughs, LLP, Boca Raton, FL, for Defendants.
HEARING ON MOTION
APPEARANCES: Submitted on briefs
RITE AID'S MOTION FOR RECONSIDERATION (Rec.doc. 79)
GRANTED IN PART AND DENIED IN PART
*1 The trial of all issues in this action, including damages, is set for August 22, 2005 and the pretrial conference is for July 28, 2005. Rec. doc. 11. If the defendant, Rite Aid Corporation (“Rite Aid”), wants a stay of discovery concerning damages while it attempts to eliminate the claims of the plaintiff, Pamlab, L.L.C. (“Pamlab”) through a motion for summary judgment, it must seek that relief from the District Court. In the absence of such relief, the undersigned must permit Pamlab to proceed with discovery that is relevant to its claims or Rite Aid's defenses. Fed.R.Civ.P. 26(b)(1).
In its complaint, Pamlab claims that Rite Aid improperly substituted FOLBEE for the Pamlab product, FOLTX. Rite Aid produced the affidavit of Steve Goodman, the senior director of pharmacy purchasing for Rite Aid, who states that its computer system cannot produce a report that specifically identifies each instance where FOLBEE was substituted for Pamlab's FOLTX. Exhibit C to Rec. doc. 89. Goodman states:
To ascertain when FOLBEE was substituted for FOLTX and whether the physician was contacted or made the change to FOLBEE, each prescription must be researched, the actual prescription must be pulled at the store level and individually reviewed by the local pharmacist.
Rite Aid can provide reports for the dispensing of FOLBEE and FOLTX that indicate the dispensed as written (“DAW”) code for the sale of each product. As acknowledged by Goodman, these reports do not identify each instance when FOLBEE was substituted for Pamlab's FOLTX. This can only be done by going to the physical records for nearly 25,000 prescriptions at over 3,000 stores.
Pursuant to Fed.R.Civ.P. 26(b)(2), the use of discovery shall be limited if the court determines that:
[T]he burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
The burden on Rite Aid to review the physical records is manifest. Pamlab's claim for injunctive relief was resolved; it now seeks only damages. The cost to Rite Aid of manually recovering the information sought by Pamlab may exceed Pamlab's alleged damages. At this point there is no way of knowing whether this true. In these circumstances, the prudent course is to place the burden of incurring the cost of the physical search on Pamlab. It is not reasonable, however, to require Pamlab to reimburse Rite Aid for any expenses incurred by it in making the prescription records available for Pamlab's inspection. It is anticipated that Rite Aid will contend that Pamlab cannot have access to the prescription records because of patient information issues. This will have to be resolved by Pamlab agreeing to a protective order that limits its use of the information and requires it to excise any patient identification information from its copies of the prescription records. In order for the parties and the Court to determine what is involved in the search for these records, as soon as practicable the parties shall conduct a trial search of ten Rite Aid stores.
*2 The parties shall proceed as follows:
1. By Wednesday, December 22, 2004, Rite Aid shall produce the reports for the dispensing of FOLBEE and FOLTX that indicate the DAW code for the sale of each product. This information shall be produced to Pamlab in a computer format so that Pamlab can sort the information in the manner that best suits its needs.
2. By Wednesday, December 22, 2004, counsel for Rite Aid and Pamlab shall meet and confer to develop a protocol for the inspection of the prescription records at ten stores to be selected by Pamlab. The protocol shall include a protective order for the patient identification information and a schedule that requires completion of the inspection of the records by Wednesday, January 19, 2005.
3. If the parties are unable to resolve all issues for the protocol by December 22, 2004 they shall contact the undersigned by that date to schedule a telephone conference.
4. On Thursday, January 20, 2005, at 2:00 pm. there shall be a telephone conference with the undersigned to review the results of the trial inspection and determine how the parties will conclude the discovery required for Pamlab's damage claims. Both parties are to submit a brief memorandum (limited to four pages) regarding the results of the trial inspection and suggestions for conclusion of the damages discovery.
IT IS ORDERED that Rite Aid's motion for reconsideration and/or clarification (Rec.doc. 79) is GRANTED in PART and DENIED in PART in accord with terms of this minute entry.
End of Document.